I was terminated out of retaliation – now what?

Q: I brought a complaint against my supervisor. The complaint was about a verbal warning she had given me based on a conversation she said she had with another co-worker. I found out who the co-worker was, asked about the conversation, and we discovered that my supervisor had lied, hence the complaint. The HR rep got involved and said she would talk to the president of the company and would work on getting me under someone else’s supervision. I thought everything was ok – I was meeting with HR weekly at her request until the matter was resolved. Then, exactly a month after I filed the complaint, I was fired for allegedly sharing salary information with other employees. I was stunned and asked who had made the allegation so I could confront my accusers. The HR rep said I had gone to my supervisor with this info. In reality, she had come to me a few months before the complaint griping how a colleague was getting more perks than her. I commiserated with her and that was that. When I told the HR rep this, she said it didn’t matter, that she had proof of me talking to other employees about salaries. I asked to see this proof and she said no, that she didn’t want to talk about it. Is it legal to get fired for a specific reason and not be allowed to see the supposed proof that led to the firing? I really feel I’ve been retaliated against because of the complaint.

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A: Maintaining relationships at work can be a challenge, particularly as people feel more stress in environments where they may be short staffed. Human resources staff most often help to resolve issues between employees and remind people the work at hand is the focus. Working with colleagues in a professional manner doesn’t mean you need to be best friends, and working toward a positive resolution of issues is typically the best course.

As this is not always the case, being able to review the situation objectively is vital. Documentation of personnel issues is a complex legal issue, and I consulted Attorney David Conforto, founder of Conforto Law Group, P.C. a Boston-based boutique firm concentrating in all aspects of employment law and dedicated to the representation of employees.

Attorney Conforto explains “If your employer relied on certain documents in terminating your employment, you may be entitled to access these materials. All Massachusetts employers with 20 or more employees are required to maintain a “personnel record” for all employees. A personnel record consists of documents that affect an employee’s “qualification for employment” and must be produced within 5 business days after an employee makes such a request.”

The statute details a list of documents that must be included as part of an employee’s personnel record, which includes: “all employee performance evaluations, including but not limited to, employee evaluation documents; written warnings of substandard performance; lists of probationary periods; waivers signed by the employee; copies of dated termination notices; any other documents relating to disciplinary action regarding the employee.

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Not every HR person, or employer is aware of these obligations under the “personnel record” statute. Some employers, for example, will simply produce documents maintained in a physical file merely labeled as your personnel file. The “personnel record” statute requires much more than that. When you request your file, be sure detail the list of documents to which you are entitled. When situations at work become this complicated you should make your request to HR in writing, and an email is acceptable.

The bigger question concerns why you were terminated. Think hard about what may have motivated your supervisor to fabricate information about you. Was your verbal warning documented? In your weekly meetings were you discussing improved performance needed? Were any of these conversations documented?

If you believe that your supervisor singled you out based on your status within a protected categories, (under the Massachusetts Fair Employment Practices Act prohibits workplace discrimination based on race, color, religious creed, national origin, sex, sexual orientation, disability, and age if you are 40 years old or above), you may have a claim against the company and him or her individually. Based on the limited information you provided, Attorney Conforto concludes the reason for your termination appears questionable at best.